Ever since 9/11, we have repeatedly emphasized why the assumption of extraordinary emergency powers by the president, the military, and the CIA as part of their war on terrorism was antithetical to a free society.

Everyone is coming to the realization that we now live in a country in which the government possesses the unfettered, non-reviewable authority to assassinate its own people.

As we learned in the Jose Padilla case, the government also now wields the post-9/11 authority to take Americans into custody without judicial process, incarcerate them as suspected terrorists for as long as it wants in a military dungeon, and torture them.

It seems to me that if a government wields the omnipotent, non-reviewable authority to assassinate its own citizens and also to arrest them without judicially issued warrants, incarcerate them forever in military dungeons without trial, and to torture them, it also, by implication, wields the omnipotent authority to round up citizens suspected of being terrorists, send them into concentration camps, and execute them, perhaps after some sort of kangaroo tribunal.

Is there a good test to determine whether citizens should permit government officials to wield such extraordinary powers, even in times of emergency or crisis?

Yes there is.

Imagine the country is in a deep economic crisis, one in which millions of angry Americans are out of jobs and have lost their savings. Assume they decide to elect an openly anti-Semitic presidential candidate, one who is blaming the nations economic woes on Jewish bankers, merchants, and speculators.

Now, ask yourself: Would you want that president to have the omnipotent power to assassinate Americans whom he, the Pentagon, and the CIA deem to be terrorists? To round up Americans and send them into concentration camps? To torture and brutalize Americans? To execute Americans after some sort of kangaroo tribunal?

There’s your test to determine whether President Bush or President Obama or any other president should be permitted to wield these extraordinary powers. If you’re not willing to delegate such powers to the very worst imaginable person, then you shouldn’t trust any person with such powers.

After all, its easy to say, Jacob, that could never happen here in the United States. That could happen only in Germany. But that, of course, nonsense. Anything is possible given the right circumstances. Moreover, once it happens, its too late to do anything about it. The power is already there in the hands of the president, the military, and the CIA, ready to be exercised.

Even if a president isn’t anti-Semitic, it is inevitable, especially in the middle of a real war or crisis, that the realm of people defined as terrorists will begin encompassing those citizens who are opposed to the war effort or who are exposing wrongdoing by the government. They come to be viewed by government officials as potential spies, traitors, demoralizers, or threats to national security.

We saw this whole phenomenon with Hitler himself. After the Reichstag Fire, Hitler persuaded the German legislature to grant him temporary extraordinary powers to wage his war on terrorism and the war on communism (i.e., Germany’s cold war against the Soviet Union). Hitler also established special courts to try suspected terrorists, communists, and traitors, to ensure that they would never be released by the regularly established German courts.

Inevitably, these extraordinary emergency powers were directed not just against Jews but also against critics of the regime those, for example, who contended that the wielding of such powers, even in the name of fighting terrorism and communism, would destroy the freedom of the German people.

Thus, Hitlers temporary emergency powers and his special Peoples Court were ultimately employed against college students Hans and Sophie Scholl and their White Rose group. Their crime? Calling on Germans through a series of pamphlets to oppose their own government.

More recently, the abuse of such powers has been used by U.S.-supported dictatorships in the Middle East to arrest government critics, incarcerate them without trial, torture them, and even execute them. In other words, such dictatorships have been employing their emergency powers in the same way Hitler did and with the same justification to wage war on terrorism, which is one big reason why people in the Middle East are so angry.

All of this should give Americans pause. Its time for Americans to begin asking some fundamental questions. Did the Framers envision a government with these extraordinary powers? Is this what America is supposed to be all about? Is this what a free society is all about? And how do we restore freedom to our country?

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Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education.
He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at
LewRockwell.com and from
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Jacob G. Hornberger

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.